RAMJI LAL MAHADEO PARSHAD Vs. REX

JUDGEMENT

(1.) THIS Full Bench has been constituted to answer the following questions of law:

(2.) THESE questions arise in two separate references made to us. The first three questions were referred to the Pull Bench by the Hon'ble the Chief Justice in Criminal Miscellaneous No. 289 of 1948. The fourth question along with the third was referred to the Pull Bench by my brother Teja Singh in criminal Miscellaneous no. 290 of 1948. The third question is common to both the references. All these questions involve within their scope the determination of the point whether the rule of English common law in respect of writs of habeas corpus prevails in India and has been substantially enacted in the statutory provisions of Section 491, Criminal P, C, and whether that rule is the one that should be followed under the provisions of that section? It was not denied that the common law writ of habeas corpus cannot be issued by this Court, but the contention raised is that in the absence of any statutory prohibition the common law practice relating to writs of habeas corpus should be followed in the analogous proceedings under Section 491 of the Code on the ground that this is a salutary and reasonable practice. It was said that as the powers to be exercised are similar, so the procedure to be followed should also be similar. Baron Parke in the case of Ex parte Partington, 1845-14 L, J. Ex. 122 : 13 M. and w. 679) made the following observations about the procedure to be followed under the common law in such matters:

(3.) IF every Judge has jurisdiction to order the writ to issue then each Judge is a tribunal to which application can be made within the meaning of the rule and every Judge must hear the application on the merits.